Hughes v. State ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-DEC-2021
07:52 AM
Dkt. 92 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
MICHAEL RAY HUGHES, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P.P. NO. 16-1-0001(1); CR. NO. 89-0225(1))
MEMORANDUM OPINION
(By: Ginoza, C.J., Leonard and Wadsworth, JJ.)
The Circuit Court of the Second Circuit1/ (Circuit
Court) denied the Hawai#i Rules of Penal Procedure (HRPP) Rule 40
petition filed on March 3, 2016, by self-represented
Petitioner-Appellant Michael Ray Hughes (Hughes). Hughes appeals
from the "Findings of Fact, Conclusions of Law, and Order
Dismissing HRPP Rule 40 Petition" (Order), entered on January 9,
2017.
On appeal, Hughes contends that the Circuit Court erred
in denying his HRPP Rule 40 petition, because it contained
allegations that if proven would have entitled Hughes to relief.
For the reasons explained below, we affirm.
I. Background
The following findings of fact by the Circuit Court are
unchallenged on appeal and are thus binding on the parties and
this court, see State v. Rodrigues, 145 Hawai#i 487, 494, 454
P.3d 428, 435 (2019):
1/
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
I. FINDINGS OF FACT
. . . .
2. On July 5, 1989, in CR 89-0225(1), the State
charged [Hughes] via Complaint with Attempted Murder in the
First Degree (Count One); Terroristic Threatening in the
First Degree (Count Two); Felon in Possession of a Firearm
(Count Three); Felon in Possession of Firearm Ammunition
(Count 4); and Place to Keep Firearm (Count 5).
3. On August 17, 1989, [Hughes]'s attorney filed a
Motion to Extend Time to File Pre-Trial Motion and/or
Continuing Trial. After holding a hearing, the Circuit
Court issued an order granting the motion.
4. On February 20, 1990, the jury trial commenced
before the Honorable John E. McConnell. Following the close
of evidence, both sides presented their closing arguments on
March 1, 1990. On the same day, the jury found [Hughes]
guilty as charged on all counts.
5. On June 22, 1990, the trial court sentenced
[Hughes] to life imprisonment without the possibility of
parole in Count One, Five years imprisonment on Counts Two
and Five, and Ten years imprisonment on Counts Three and
Four.
6. On July 17, 1990, [Hughes] filed a Notice of
Appeal. On November 26, 1990, [Hughes] filed his Opening
Brief in the Supreme Court of the State of Hawaii under S.C.
No. 14689. On February 4, 1991 the State filed its
Answering Brief. On February 14, 1991, [Hughes] filed his
Reply Brief. On May 28, 1991, the Hawaii Supreme Court
issued its opinion affirming the convictions.
(Record citations omitted.)
The Hawai#i Supreme Court's above-referenced opinion in
State v. Hughes, No. 14689 (Haw. May 28, 1991) (mem.), stated:
MEMORANDUM OPINION
Defendant-appellant Michael Ray Hughes appeals from
his convictions of Attempted Murder in the First Degree, in
violation of Hawaii Revised Statutes (HRS) § 707-701 (count
1); Terroristic Threatening in the First Degree, in
violation of HRS § 707-716 (count 2); Felon in Possession of
a Firearm, in violation of HRS § 134-7 (count 3); Felon in
Possession of a Firearm Ammunition, in violation of HRS
§ 134-7 (count 4); and Place to Keep Firearm, in violation
of HRS § 134-6 (count 5).
Defendant-appellant contends: 1) that the trial court
committed reversible error in its instructions to the jury
regarding the elements of counts 3, 4, and 5; and 2) that he
had ineffective assistance of counsel.
We find that, although the instructions for counts 3,
4, and 5 did not include the requisite mental states for the
charged offenses, this error was harmless and did not
contribute to the convictions. State v. Domingo, 69 Haw.
68, 733 P.2d 690 (1987).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On the issue of ineffective assistance of counsel, we
find that defendant-appellant failed to show the withdrawal
of a meritorious defense. Even assuming that his counsel
rendered ineffective assistance, defendant-appellant's claim
will only be upheld if he can show that counsel's errors
resulted in either the withdrawal or substantial impairment
of a potentially meritorious defense. State v. Smith, 68
Haw. 304, 309, 712 P.2d 496, 500 (1986).
Accordingly, the convictions of defendant-appellant
are affirmed.
The Circuit Court's unchallenged findings of fact
continue as follows:
7. On April 26, 2006, [Hughes] filed his first
Petition to Vacate, Set Aside, or Correct Judgment, or
Release Petitioner from Custody ("Petition No. 1"), in the
Circuit Court of the Second Circuit.
8. On October 31, 2006, the Circuit Court filed its
Findings of Fact, Conclusions of Law, and Order Denying
Hughes' Petition No. 1. [Hughes] filed a notice of appeal
on November 30, 2006. On July 31, 2008, the Hawaii
Intermediate Court of Appeals (ICA) issued their Summary
Disposition affirming the Circuit Court's denial of Petition
No. 1. On December 22, 2008, the Hawaii Supreme Court
rejected [Hughes]'s application for writ of certiorari.
This court's above-referenced summary disposition in
Hughes v. State, No. 28298, 2009 WL 2932762 (Haw. App. July 31,
2008) (SDO), stated in part:
COL 5
Ground one of Hughes's [Petition No. 1] claims ineffective
assistance of trial counsel. Hughes previously raised the
issue of ineffective assistance of trial counsel on direct
appeal, and it was ruled on by the Hawai#i Supreme Court.
The circuit court did not err in concluding that the issue
of ineffective assistance of trial counsel had been either
ruled upon in a previous appeal or waived. HRPP Rule
40(a)(3).
. . . .
COL 15
Hughes claimed his appellate counsel was ineffective because
counsel did not raise every possible error that might show
ineffective assistance of trial counsel. The circuit court
noted that in [Petition No. 1], Hughes pointed to sixteen
ways his trial counsel was ineffective. The circuit court
concluded that many of Hughes's claims of ineffective
assistance of trial counsel were raised in his direct
appeal.
. . . .
The circuit court did not err in concluding that an informed
and diligent criminal attorney would not have included on
appeal the additional points Hughes claimed should have been
raised.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Id. at *2-3 (citation omitted).
The Circuit Court's unchallenged findings of fact
continue as follows:
9. On March 3, 2016, [Hughes] filed his present Rule
40 Petition [(Petition No. 2)] on the following grounds for
why relief should be granted:
Claim []1: [Hughes] alleges his state and federal
constitutional rights were violated because he was
prosecuted without the presentment or indictment of a
grand jury.
Claim []2: [Hughes] alleges the prosecution illegally
amended the complaint in violation of HRPP Rule 7 and
his constitutional rights.
Claim []3: [Hughes] alleges that the District Court
lacked proper jurisdiction over the complaint which
contained the felony offenses.
Claim []4: [Hughes] alleges that he was "illegally
charged and prosecuted for the felony offense of
Terroristic Threatening in the First Degree."
Claim []5: [Hughes] alleges that his state and federal
constitutional right to a speedy trial and HRPP Rule
48 were violated.
Claim []6: [Hughes] alleges that the Hawaii Paroling
Authority had no authority to set his minimum terms
and that "multiple statutory term sentences (which are
mandatory) occurring from multiple offenses which were
based on single use of firearm from a single incident
- were illegal, multiplicious, and prejudicial."
Claim []7: [Hughes] alleges his state and federal
constitutional rights were violated because the
firearm charges are an included offense of [Hughes]'s
attempted murder charge.
Claim []8: [Hughes] alleges the Hawaii Rules of
Evidence [(HRE)], Rule 404(b) was violated when the
State presented evidence before the jury that [Hughes]
was previously convicted of Assault in the Second
Degree.
Claim []9: [Hughes] alleges the amount of errors in
this matter amount to cumulative error and the sheer
volume of errors was prejudicial and mandates reversal
of [Hughes]'s convictions.
Claim []10: [Hughes] seeks reservation of any
additional claims that may later arise from review of
court transcripts or documents from the court record.
10. None of the claims listed in the above paragraph
were raised in Petition No. 1.
On January 9, 2017, the Circuit Court entered the Order
denying Petition No. 2 without a hearing. The Circuit Court
determined that all of Hughes's claims, except for Claim 9,
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
alleging cumulative error, were waived "pursuant to HRPP Rule
40(a)(3) since [Hughes] had a reasonable opportunity to raise
[these] issue[s] on direct appeal and/or in Petition No. 1."
Additionally, the court determined as to each claim that "[e]ven
when taken as true, [the facts alleged in Petition No. 2] do not
entitle [Hughes] to relief under HRPP Rule 40."
On January 31, 2017, Hughes timely filed a notice of
appeal.
II. Standards of Review
HRPP Rule 40(a)(3) provides, in relevant part:
Rule 40 proceedings shall not be available and relief
thereunder shall not be granted where the issues sought to
be raised have been previously ruled upon or were waived.
Except for a claim of illegal sentence, an issue is waived
if the petitioner knowingly and understandingly failed to
raise it and it could have been raised before the trial, at
the trial, on appeal, in a habeas corpus proceeding or any
other proceeding actually conducted, or in a prior
proceeding actually initiated under this rule, and the
petitioner is unable to prove the existence of extraordinary
circumstances to justify the petitioner's failure to raise
the issue. There is a rebuttable presumption that a failure
to appeal a ruling or to raise an issue is a knowing and
understanding failure.
HRPP Rule 40(f) provides, in relevant part:
[T]he court may deny a hearing if the petitioner's claim is
patently frivolous and is without trace of support either in
the record or from other evidence submitted by the
petitioner.
A trial court's denial of an HRPP Rule 40 petition is
reviewed de novo. Dan v. State, 76 Hawai#i 423, 427, 879 P.2d
528, 532 (1994).
As a general rule, a hearing should be held on a Rule 40
petition for post-conviction relief where the petition
states a colorable claim. To establish a colorable claim,
the allegations of the petition must show that if taken as
true the facts alleged would change the verdict, however, a
petitioner's conclusions need not be regarded as true. Where
examination of the record of the trial court proceedings
indicates that the petitioner's allegations show no
colorable claim, it is not error to deny the petition
without a hearing. The question on appeal of a denial of a
Rule 40 petition without a hearing is whether the trial
record indicates that Petitioner's application for relief
made such a showing of a colorable claim as to require a
hearing before the lower court.
Id. (quoting State v. Allen, 7 Haw. App. 89, 92-93, 744 P.2d 789,
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
792-93 (1987)).
III. Discussion
Hughes contends that the Circuit Court erred: (1) in
failing to file documents and motions submitted by Hughes,
including various document requests and a motion to amend
Petition No. 2; (2) in not providing Hughes with requested
documents and transcripts without charge; (3) in determining that
all but one of Hughes's claims were waived pursuant to HRRP Rule
40(a)(3); (4) in dismissing Claim 1, alleging that Hughes's state
and federal constitutional rights were violated because he was
prosecuted without the presentment or indictment of a grand jury;
(5) in dismissing Claim 2, alleging that the complaint against
Hughes in his underlying criminal case was illegally amended by
the prosecution; (6) in dismissing Claim 3, alleging that the
District Court of the Second Circuit (District Court) lacked
jurisdiction over the complaint, which contained felony offenses;
(7) in dismissing Claim 4, as Hughes "was charged and convicted
for both terroristic threatening and firearm charge (HRS § 134-
6)[,] whereby one charge is included within the other"; (8) in
dismissing Claim 5, alleging that Hughes's constitutional right
to a speedy trial and HRPP Rule 48 were violated; (9) in
dismissing Claim 6, alleging that "multiple . . . minimum term
sentences" that were determined by a "non-trier of fact" were
illegal; (10) in dismissing Claim 7, alleging that Hughes's state
and federal constitutional rights were violated because the
"firearm charges are an included offense of [the] attempted
murder charge"; (11) in dismissing Claim 8, alleging that "[HRE]
Rule 404(b) was violated when the State admitted evidence before
the jury that [Hughes] was previously convicted of Assault in the
Second Degree"; and (12) dismissing Claim 9, alleging that
cumulative errors require reversal of Hughes's convictions.2/
Hughes also asserts "reserved" claims 10A (rule of lenity) and
10B (ineffective assistance of counsel).
2/
Hughes's points of error have been reordered, restated and
condensed for clarity.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
We group these contentions by subject matter and
address each of them below.
A. Document and Filing Issues
Hughes contends that the Circuit Court violated HRPP
Rules 42, 49, and 52 by "failing to file multiple documents,
requests[,] and motions submitted by [Hughes] pertaining to and
supporting the instant Petition," thereby denying Hughes
"constitutionally protected access to the courts." Hughes lists
sixteen documents that the Circuit Court allegedly "failed to
file and/or enter into the record[.]"
This argument lacks merit for two reasons. First,
Hughes has not identified "where in the record the alleged error
[in failing to file documents] was objected to or the manner in
which the alleged error was brought to the attention of the
[Circuit C]ourt . . . ." HRAP Rule 28(b)(4)(iii); see id. Rule
10(e)(1) ("If any differences arise as to whether the record
truly discloses what occurred in the court or agency appealed
from, the differences shall be submitted to and settled by that
court or agency and the record made to conform to the truth.").
This basis for appeal was therefore waived. See State v.
Gonzalez, 128 Hawai#i 314, 317, 288 P.3d 788, 791 (2012) (noting
that "the failure to properly raise an issue at the trial level
precludes a party from raising that issue on appeal" (quoting
State v. Kikuta, 125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011)));
HRAP Rule 28(b)(4) (Points not presented in accordance with this
section will be disregarded . . . .").
Second, even if we were to consider the asserted error,
it appears that the sixteen listed documents are not part of the
record, and Hughes has failed to demonstrate how the alleged
failure to file any of the documents affected his substantial
rights. See HRPP Rule 52(a). Nor can we determine the effect of
the alleged error as Hughes has not provided a sufficient record
for us to do so. See HRAP Rule 11(a) ("It is the responsibility
of [the] appellant to provide a record . . . that is sufficient
to review the points asserted . . . ."); Bettencourt v.
Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) ("The
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
law is clear in this jurisdiction that the appellant has the
burden of furnishing the appellate court with a sufficient record
to positively show the alleged error." (quoting Union Bldg.
Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682
P.2d 82, 87 (1984))).
Relatedly, Hughes contends that the Circuit Court erred
in failing to file Hughes's motion for leave to amend Petition
No. 2, and in not allowing amendment of Petition No. 2. But the
purported motion, which Hughes states was not ruled upon, is not
part of the record, and Hughes has not provided a sufficient
record for us to evaluate his contention. We thus reject the
asserted error. See Tradewinds Hotel, Inc. v. Cochran, 8 Haw.
App. 256, 266, 799 P.2d 60, 66-67 (1990).
Hughes also contends that it was an abuse of discretion
for the Circuit Court to "fail to provide pro se indigent
[Hughes's] requested documents and transcripts" supporting
Hughes's points of error on appeal "when those same documents and
transcripts are availab[l]e to others who[] c[an] afford them."
Initially, it is not clear from the record exactly what
documents and transcripts Hughes requested from the Circuit Court
and when such requests were made. Hughes claims that he
submitted "Ex Parte Motion[s] for Production of Documents[,]"
dated November 24, 2015, and April 4, 2016, to the Circuit Court,
and that these motions were not filed. These motions are not
part of the record,3/ and Hughes has failed to demonstrate how the
Circuit Court's alleged failure to provide requested transcripts
and documents affected his substantial rights. See HRPP Rule
52(a). Both the United States Supreme Court and the Hawai#i
Supreme Court have held that a petitioner does not have a
statutory or constitutional right to free transcripts to aid the
petitioner in preparing a petition for collateral relief. See
United States v. MacCollom, 426 U.S. 317, 323–28 (1976); Santiago
v. Chan, No. 28885, 2007 WL 4396055, at *1 (Haw. Dec. 10, 2007)
3/
Hughes improperly attached copies of several documents to his
reply brief, including an unfiled document entitled "Petitioner's Second Ex
Parte Motion for Production of Documents," dated April 4, 2016, which does not
identify any specific requested documents. See HRAP Rule 28(d). The
documents attached to the reply brief are not part of the record on appeal.
See HRAP Rules 10(e), 11(a).
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(citing HRS § 802–7 (1993) and MacCollum, 426 U.S. at 323-28).
Accordingly, Hughes has failed to demonstrate any error by the
Circuit Court related to his purported request for transcripts
and documents free of charge.
We also note that on April 10, 2017, Hughes filed a
document in this appeal titled, "Appellant's Request for
Preparation of Transcripts and Production of Documents (Fourth
Request)" (April 10, 2017 Motion), by which Hughes requested the
preparation of four transcripts and the production of thirteen
documents from his related criminal case, Cr. No. 89-0225.
Based on the appendices attached to the April 10, 2017 Motion, it
appears that Hughes claims to have previously requested these
same transcripts and documents from the Circuit Court. In the
April 10, 2017 Motion, Hughes also requested that this court
waive copy and production costs because the Circuit Court granted
him leave to proceed in forma pauperis in the underlying case.
This court granted in part and denied in part the
April 10, 2017 Motion by order entered on June 21, 2017, and
granted in part and denied in part Hughes's July 7, 2017 motion
for reconsideration by order entered on July 27, 2017. In
summary, this court determined that "[w]ith respect to the
documents requested in the [April 10, 2017] Motion, all but the
June 16, 1989 complaint in district court, and all of the minutes
from the criminal case are included in the record on appeal[.]"
(Footnote omitted.) Regarding Hughes's request for the four
transcripts: (1) this court determined that the June 20, 1989
transcript was already part of the record on appeal; (2) upon
temporary remand, the Circuit Court clerk determined that no
transcripts could be filed for the dates of July 12, 1989, and
September 27, 1989, because no hearings occurred on those dates;
and 3) pursuant to this Court's July 27, 2017 order, the June 22,
1990 transcript was filed in this appeal on August 23, 2017.
This court's June 21, 2017 order made clear that Hughes "may
request copies of all documents and transcripts that are included
in the record on appeal by submitting a written request to the
appellate clerk, who will notify [Hughes] of the associated costs
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
for copying and postage."4/
On this record, Hughes has not shown how the Circuit
Court's alleged failure to provide any requested transcripts or
documents affected his substantial rights. Accordingly, his
point of error is without merit.
B. Waiver of Claims
Hughes contends that the Circuit Court erred in
determining that all of his claims, other than Claim 9, alleging
cumulative error, were waived pursuant to HRPP Rule 40(a)(3).
Hughes argues that he submitted claims of illegal sentence, which
pursuant to HRPP Rule 40(a)(3) are an exception to waiver; he
raised a jurisdictional issue, which cannot be deemed waived; and
he "cannot be held to answer for the failings and om[]issions of"
his prior counsel.
Hughes is correct that Claim 6, as a claim of illegal
sentence,5/ was exempt from being waived under HRPP Rule 40(a)(3).
See Stanley, 148 Hawai#i at 502, 479 P.3d at 120; Flubacher, 142
Hawai#i at 114 n.7, 414 P.3d at 166 n.7 ("[A]ny analysis of
waiver must be made in light of HRPP Rule 40(a)(3), which
specifically exempts illegal sentence claims from being
waived."). Hughes is also correct that Claim 3 raises a
jurisdictional issue that was not waived. See Adams v. State,
103 Hawai#i 214, 220–21, 81 P.3d 394, 400–01 (2003) ("questions
regarding subject matter jurisdiction may be raised at any stage
of a cause of action" (brackets omitted) (quoting Amantiad v.
Odum, 90 Hawai#i 152, 159, 977 P.2d 160, 167 (1999))). Thus, the
Circuit Court erred in ruling that Claims 3 and 6 were waived.
Nonetheless, we conclude that the Circuit Court was correct in
4/
This court's January 8, 2018 order also informed Hughes that,
"[a]s a party to the appeal, [Hughes] may become a [Judiciary Electronic
Filing System] user and access the record on appeal electronically without
charge via the internet at www.courts.state.hi.us."
5/
"A sentence is illegal if the sentencing court lacks authority to
impose it, or it is imposed in violation of the law." Thomas v. State,
CAAP-XX-XXXXXXX, 2021 WL 1699887, at *1 n.2 (Haw. App. Apr. 29, 2021) (SDO)
(citing Stanley v. State, 148 Hawai#i 489, 502, 479 P.3d 107, 120 (2021);
Flubacher v. State, 142 Hawai#i 109, 110-11, 414 P.3d 161, 162-63 (2018);
Moananu v. State, CAAP-XX-XXXXXXX, 2020 WL 3034708, *6 (Haw. App. June 5,
2020) (mem.)).
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
ruling that Claims 3 and 6 failed to state colorable claims, as
discussed below in sections C and D.
Hughes also argues that he "cannot be held to answer
for the failings and om[]issions of the counsel(s) appointed by
the State of Hawaii whom previously represented [Hughes] (nor any
other prior counsel)." Hughes did not present an ineffective
assistance of counsel claim in Petition No. 2. While Hughes
attempts to raise an ineffective assistance claim for the first
time on appeal in the form of his "reserved claim" 10(B), we do
not consider this claim for the reasons discussed below in
section F.6/
Even if we were to consider Hughes's argument regarding
his prior counsel, Hughes asserts only generally that his counsel
"either [did] not know[] the law, f[ound] the task too
labor[i]ous, or flat out den[ied] the wishes of their client."
Such general arguments do not establish extraordinary
circumstances preventing waiver. See HRAP Rule 40(a)(3); Dan, 76
Hawai#i at 427, 879 P.2d at 532 ("General claims of
ineffectiveness are insufficient and every action or omission is
not subject to inquiry." (quoting Briones v. State, 74 Haw. 442,
462–63, 848 P.2d 966, 976 (1993))). Hughes has not asserted
specific errors or omissions that resulted in the withdrawal or
substantial impairment of a meritorious defense. See Dan, 76
Hawai#i at 427, 879 P.2d at 532.
Thus, Hughes has not established the existence of
extraordinary circumstances to justify his prior failure to raise
issues that he now raises in Petition No. 2, which could have
been raised in his direct appeal or Petition No. 1. Accordingly,
the Circuit Court did not err in ruling that Claims 1, 2, 4, 5,
7, 8, and 10 were waived.7/
6/
We also note that Hughes previously raised the issue of
ineffective assistance of trial counsel on direct appeal, which was ruled on
by the supreme court, and in Petition No. 1, which was ruled on by this court.
See Hughes, 2008 WL 2932762, at *2. Hughes also raised the issue of
ineffective assistance of appellate counsel in Petition No. 1, which was ruled
on by this court. Id. at *3.
7/
With respect to Claim 4, Hughes argues in part that Hawai #i law
"prohibits separate sentences for both an offense and an offense included
therein." However, Claim 4 was not presented as a claim of illegal sentence
in Petition No. 2. Similarly, Claim 7, which asserted that "[Hughes's]
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
C. Jurisdictional Issue
Hughes contends that the Circuit Court erred in
dismissing Claim 3. Hughes argues that the District Court, which
held a preliminary hearing in Hughes's underlying criminal case,
lacked "jurisdiction [over] a felony offense - and thereby, the
ability to allow an amendment (by jurisdiction) of a charged
felony offense."
In dismissing Claim 3, the Circuit Court stated, in
relevant part:
15. Claim []3: The Court concludes Claim []3 does
not entitle [Hughes] to relief under HRPP Rule 40. [Hughes]
alleges that the District Court lacked proper jurisdiction
over the complaint which contained the felony offenses.
. . . .
17. Even if Claim []3 had not been waived, the claim
is patently frivolous and without a trace of support in the
record. The procedures of HRS §§ 801-1, 806-6, 806-8 and
HRPP 5(c) and 7(h) established proper jurisdiction. More
specifically, a complaint containing the charges against
defendant was filed in District Court; the District Court,
after a preliminary hearing, found probable cause to believe
that defendant had committed the charged offenses and
committed him to the Circuit Court for further proceedings;
and the complaint, as well as the order committing defendant
to the Circuit Court, were attached to the pleading filed in
the Circuit Court. . . . Accordingly, [Hughes] fails to
state a colorable claim in Claim []3.
In 1989, when Hughes was charged, HRPP Rule 5(c)8/
firearm charges are an included offense of [Hughes's] attempted murder
charge," was not presented as a claim of illegal sentence in Petition No. 2.
The crux of Hughes's argument raises an issue on the merits, not the sentence,
see Thomas, 2021 WL 1699887, at *1 n.2, and the Circuit Court did not err in
concluding that Claims 4 and 7 had been waived. Moreover, Claims 4 and 7 each
fail to state a colorable claim.
8/
At the time of the offenses, HRPP Rule 5(c) (1988) provided, in
relevant part:
Rule 5. PROCEEDINGS BEFORE THE DISTRICT COURT
. . . .
(c) Felonies. In the district court, a defendant
charged with a felony shall not be called upon to plead, and
proceedings shall be had in accordance with this section
(c).
. . . .
(6) Disposition. If from the evidence it appears that
there is probable cause to believe that the felony charged,
or an included felony, has been committed and that the
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
empowered the district court to conduct a preliminary hearing to
determine whether there was probable cause to commit a defendant
charged with a felony to answer in the circuit court. Relatedly,
HRPP Rule 7(b)(1)9/ provided that "[a] felony may be prosecuted by
a complaint . . . if with respect to that felony the district
judge has found probable cause at a preliminary hearing and has
committed the defendant to answer in the circuit court pursuant
to Rule 5(c) of these rules[.]" Further, HRPP Rule 7(h) required
that such a complaint be filed initially in the district court
when "none of the three conditions set forth in Rule 7(b) . . .
has yet occurred[.]"
defendant committed it, the court shall forthwith commit him
to answer in the circuit court; otherwise, the court shall
discharge him.
9/
At the time of the offenses, HRPP Rule 7(b) and (h) (1988)
provided, in pertinent parts:
Rule 7. THE INDICTMENT, COMPLAINT AND ORAL CHARGE
. . . .
(b) When Felony May Be Prosecuted by Complaint. A
felony may be prosecuted by a complaint under any of the
following 3 conditions:
(1) if with respect to that felony the district judge
has found probable cause at a preliminary hearing and has
committed the defendant to answer in the circuit court
pursuant to Rule 5(c) of these rules;
(2) if, pursuant to Rule 5(c)(2) of these rules, the
defendant has waived in open court his right to a
preliminary hearing; or
(3) if, pursuant to Rule 7(c) of these rules, the
defendant has waived in open court the right to an
indictment.
. . . .
(h) Court in Which Charge Filed.
(1) An indictment shall be filed in the circuit court.
(2) A complaint may be filed in either the district or
circuit court; provided that a complaint shall not be filed
initially in the circuit court when it charges:
(i) a felony, and none of the three conditions
set forth in Rule 7(b) of these rules has yet
occurred, or
(ii) only an offense or offenses other than a
felony.
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Here, pursuant to HRPP Rule 7 (b) and (h), a complaint
containing the felony charges against Hughes was filed in the
District Court. Pursuant to HRPP Rule 5, the District Court,
after a preliminary hearing, found probable cause to believe that
Hughes had committed the charged offenses and committed him to
the Circuit Court for further proceedings. Accordingly, the
Circuit Court correctly ruled that the District Court had
jurisdiction for this purpose.
Hughes argues that the District Court "was without
jurisdiction of the felony offense amended[,]" pursuant to HRS
§§ 604-8 and 701-113. However, we do not read these statutes as
depriving the district court of jurisdiction to conduct a
preliminary hearing in accordance with HRPP Rule 5(c). See State
v. Wilson, 55 Haw. 314, 316-17, 519 P.2d 228, 230 (1974) (noting
that under HRS § 604-8, the district court did not have
jurisdiction to try a felony, but under former Hawai#i Rules of
Criminal Procedure Rule 5(d)(2), the district court was
"empowered . . . to conduct a preliminary hearing, to hear
evidence, and to discharge a defendant should probable cause not
appear from the evidence adduced"). In addition, HRPP Rule
7(f)10/ permitted the amendment of the complaint to correct a
typographical error, and at the start of the preliminary hearing,
Hughes confirmed that he had no objection to the amendment.
Accordingly, the Circuit Court correctly ruled that
Hughes failed to state a colorable claim in Claim 3.
D. Illegal Sentence Issues
Hughes contends that the Circuit Court erred in
dismissing Claim 6, and that he was "[s]entenced [i]llegally to
[m]ultiple [m]inimum [t]erms."
In dismissing Claim 6, the Circuit Court stated, in
relevant part:
28. Claim []6: The Court concludes Claim []6 does
not entitle [Hughes] to relief. In Claim []6, [Hughes]
10/
At the time of the offenses, HRPP Rule 7(f) stated: "The court
may permit a charge other than an indictment to be amended at any time before
verdict or finding if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced."
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
alleges that the Hawaii Paroling Authority ("HPA") had no
authority to set his minimum terms and that "multiple
statutory term sentences (which are mandatory) occurring
from multiple offenses which were based on single use of
firearm from a single incident - were illegal,
multiplicious, and prejudicial."
. . . .
30. Even if Claim []6 had not been waived, the claim
is patently frivolous and without a trace of support in the
record. First, as [Hughes] has already served the minimum
terms on the firearms convictions, the matter is moot.
Further, the HPA has proper authority to set minimum terms
according to law. See Williamson v. Hawai #i Paroling
Authority, 97 Hawai#i 183, 35 P.3d 210 (2001). Finally,
[Hughes]'s claim that his sentence is illegal due to
"multiple sentences" for a "single use of firearm" is
unavailing. As discussed in Claims []4 and []7, [Hughes]'s
sentence involving multiple firearm convictions does not
violate the prohibition against double jeopardy.
Accordingly, [Hughes] fails to state a colorable claim in
Claim []6.
On appeal, Hughes argues that the issue of his "illegal
minimum term sentences" is not moot, because he continues to
experience "prejudice" in matters of housing, custody level,
classification, and available programming as a result of the
sentences. His argument has merit, as "[c]riminal convictions
have collateral consequences even after sentences have been
served." State v. Tierney, 127 Hawai#i 157, 172, 277 P.3d 251,
266 (2012) (citing Sibron v. New York, 392 U.S. 40, 55–56 (1968),
for the proposition: "Although [a defendant's prison] term has
been served, the results of the conviction may persist.
Subsequent convictions may carry heavier penalties; civil rights
may be affected. As the power to remedy an invalid sentence
exists, a defendant is entitled to an opportunity to attempt to
show that his conviction was invalid."). We conclude that the
Circuit Court erred in ruling that, "as [Hughes] has already
served the minimum terms on the firearms convictions, the matter
is moot."
However, the Circuit Court correctly determined that
the HPA had authority to set Hughes's minimum terms. In
Williamson, the supreme court discussed the broad mandate granted
to the HPA pursuant to HRS § 706-669 (1993), noting that "the HPA
has the 'exclusive authority to determine the minimum time which
must be served before the prisoner will be eligible for parole'"
and that "[t]he legislature apparently intended to grant the HPA
15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
broad discretion in establishing minimum terms." 97 Hawai#i at
189, 35 P.3d at 216.
Hughes contends that "the trier of fact (jury) did not
determine [Hughes's] multiple minimum term sentences[.]" Below,
Hughes relied on Apprendi v. New Jersey, 530 U.S. 466 (2000), in
arguing that the trier of fact and not the HPA should have
determined his minimum term sentences.
Hughes's reliance on Apprendi is misplaced for two
reasons. First, the Hawai#i Supreme Court has held that
"Apprendi does not apply retroactively in this jurisdiction to
cases on collateral attack." State v. Gomes, 107 Hawai#i 308,
314, 113 P.3d 184, 190 (2005). Second, Apprendi does not apply
to the determination of minimum term sentences in these
circumstances. See Draizen v. State, No. CAAP-XX-XXXXXXX, 2015
WL 775031, at *2 (Haw. App. Feb. 24, 2015). Rather, in Apprendi,
the Supreme Court held that "other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Gomes, 107 Hawai#i
at 312, 113 P.3d at 188 (brackets omitted) (quoting Apprendi, 530
U.S. at 490). Here, none of Hughes's sentences exceeded the
applicable statutory maximum. Thus, Apprendi does not apply, and
the Circuit Court did not err in concluding that the HPA had
authority to set Hughes's minimum terms.
Hughes also alleged in Claim 6 that his sentence was
illegal due to "[m]ultiple . . . sentences" for the "single use
of a firearm." However, on appeal, he presents no argument on
this allegation, and the issue is thus deemed waived. See HRAP
Rule 28(b)(7); Rapozo v. State, 150 Hawai#i 66, 86, 497 P.3d 81,
101 (2021).
Accordingly, the Circuit Court correctly ruled that
Hughes failed to state a colorable claim in Claim 6.
E. Cumulative Error
Hughes contends that the Circuit Court "committed a
massive amount of structural and prejudicial error which only
furthers and supports [Hughes's] Claim 9 of and pertaining [to]
16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
'Cumlative Error[.]'" (Emphasis omitted.)
In dismissing Claim 9, the Circuit Court stated:
40. Claim []9: The Court concludes Claim []9 does
not entitle [Hughes] to relief. In Claim []9, [Hughes]
alleges the amount of errors in this matter amount to
cumulative error and that the sheer volume of errors
resulted [in] prejudice and therefore mandates reversal of
[Hughes]'s convictions. As indicated supra, no errors have
been found and [Hughes]'s Claims []1 through []8 fail to
state a colorable claim. Therefore, Claim []9 also fails to
state a colorable claim.
For the reasons previously discussed, Hughes's claims
either have been waived or fail to state a colorable claim.
Accordingly, the Circuit court correctly ruled that Hughes failed
to state a colorable claim in Claim 9.
F. "Reserved Claims"
Hughes presents additional "Reserved Claims" 10(A) and
10(B) in the appendices of his Opening Brief, identified as
"Exhibit C" and "Exhibit D," respectively. Specifically, Hughes
argues that: 1) his sentence violates the Rule of Lenity; and 2)
pre-trial counsel was ineffective.
Hughes's reserved claims violate HRAP Rule 28(a), which
provides in relevant part that "an opening or answering brief
shall not exceed 35 pages[.]" HRAP further states: "If a brief
raises ineffective assistance of counsel as a point of error, the
appellant shall serve a copy of the brief on the attorney alleged
to have been ineffective." HRAP Rule 28(a). Hughes's reserved
claims 10(A) and 10(B) do not conform with HRAP Rule 28(a), as
they are included in the appendices of the opening brief, on
pages 58 and 70, respectively, well beyond the brief's 35-page
limit. Further, the record contains no indication that Hughes
served his ineffective assistance of counsel claim upon counsel
whom he claims was ineffective, as required by HRPP Rule 40(f)
and HRAP Rule 28(a).
Additionally, the record contains no indication that
Hughes raised Claims 10(A) and 10(B) in the Circuit Court. We do
not consider these claims, which were raised for the first time
on appeal. See Rapozo, 150 Hawai#i at 86, 497 P.3d at 101
(citing Dan, 76 Hawai#i at 431, 879 P.2d at 536).
17
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
IV. Conclusion
For the reasons discussed above, the Findings of Fact,
Conclusions of Law, and Order Dismissing HRPP Rule 40 Petition,
entered on January 9, 2017, in the Circuit Court of the Second
Circuit, is affirmed.
DATED: Honolulu, Hawai#i, December 30, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Michael Ray Hughes, Chief Judge
Self-Represented Petitioner-
Appellant
/s/ Katherine G. Leonard
Peter A. Hanano, Associate Judge
Deputy Prosecuting Attorney,
County of Maui,
for Respondent-Appellee /s/ Clyde J. Wadsworth
Associate Judge
18